Patricia Mac Bride: Unionist legal action has done us a favour

TUV leader Jim Allister, former Labour MP Baroness Kate Hoey and former Brexit Party MEP Ben Habib outside court on Monday. Picture: Hugh Russell.
TUV leader Jim Allister, former Labour MP Baroness Kate Hoey and former Brexit Party MEP Ben Habib outside court on Monday. Picture: Hugh Russell.

On Monday, the Court of Appeal ruled that the Northern Ireland Protocol was lawfully enacted and must take precedence over the Article 6 of the Act of Union 1800, which outlines trading conditions between Britain and Ireland.

The appeal court judges dismissed a challenge brought by Jim Allister, Arlene Foster, Steve Aiken and others to the protocol after finding that it subjugates part of the Act of Union 1800, but that Parliament knew what it was doing, given the detailed and protracted negotiations on the withdrawal agreement, and that it acted lawfully.

The High Court acknowledged in June last year that the Brexit withdrawal agreement conflicts with Article 6 of the Act of Union, but that the new legislation overrides an older law which cannot obstruct the clear specific will of today’s Parliament.

The basis of the Allister group’s appeal, simply put, was that the Act of Union has legal supremacy, with no power for the implied repeal of a constitutional statute. The court found that Article 6 of the Act of Union has been modified by the terms of the Withdrawal Agreement Act, but not repealed.

If only we lived in a country which had a clear written constitution then things would be a lot more straightforward in terms of legal supremacy, wouldn’t they?

Delivering the court’s judgment, Lady Chief Justice Siobhán Keegan stated: "Parliament was clearly sighted on the protocol which was the end result of a protracted, transparent, debated, informed and fully democratic process which decided arrangements for Northern Ireland post Brexit. The terms were settled and made law after a long parliamentary process, and it cannot be seriously suggested that Parliament was unaware of the changes that may be wrought."

The court also dismissed the other grounds for appeal which were based on arguments that the Northern Ireland Act 1998 had been breached, thus impacting the constitutional status of the north. It held that the north’s constitutional status within the United Kingdom remains unchanged.

It remains to be seen whether or not the appellants will seek leave to appeal to the Supreme Court in London but if they do, then without significant new legal arguments, it’s hard to see how this week’s decision would be overturned.

There is a long tradition of lawyers who have gone into unionist politics with names such as Desmond Boal, Jim Allister, Edward Carson, Arlene Foster, Emma Little-Pengelly, Peter Weir, Trevor Ringland and David Trimble coming to mind without even thinking too hard. When you consider the cast list, it is unsurprising that unionism would seek to test law through the courts. Nor should it be seen as a bad thing.

If politics is the art of the possible, then law is the map by which we navigate society.

The problem for unionism is that Monday’s judgment may have reaffirmed that the north’s constitutional status is unchanged by the withdrawal agreement, but that does not mean that the Union is safe.

There is a two-fold problem. Firstly, unionist unity never seems to last. If an appeal to the Supreme Court doesn’t go ahead or proceeds and doesn’t succeed, then democrats must accept that they have exhausted the process, that the withdrawal agreement is legal (which, it is, as things stand today) and must be accepted by all law-abiding citizens.

At that stage, unionism will most likely split into hard opponents of the protocol, whose next steps are yet to be revealed, and soft opponents of the protocol. The latter should, and most likely will, focus pragmatically on ensuring maximum mitigations of any negative impacts of the protocol on business and society.

The second problem is that successive British governments have been reluctant to protect or promote the union. In January 2019 a paper entitled “UK Government commitments to Northern Ireland and its integral place in the United Kingdom” was published with the intent of reassuring unionism that the withdrawal agreement posed no threat to the Union. But it also said that “the Union will only endure – as is this government’s clearly expressed preference – with the consent of the people of Northern Ireland.” It was clearly laying down a marker that the Union should not be taken for granted.

Unionism’s anger has been directed at the EU, the Irish government, the nationalist community, the judiciary and everyone except the British government who are the ones who negotiated the withdrawal agreement and a Parliament who passed it by 521 to 73 votes.

Revisiting the January 2019 paper and the commitments in it to ensure a strong role for the assembly in the operation of the protocol might be the best approach. The British government has the ability to enhance devolved powers and existing democratic structures can be built upon to ensure effective oversight and hold Westminster to account on operation of the withdrawal agreement. That, of course, that will require a return to devolution following the election in May.

I welcome the fact that our unionist brothers and sisters have done us a favour in confirming through the courts that the withdrawal agreement is a legally-binding international treaty.

Can we now get on with navigating its oversight and mitigating any negative impacts on our communities?